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Recording Requested By:
. fi 001 2005-0346430
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) )~ APR 26,2005 11 :08 AM
) iJFFICloL REWRDS
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) PAGE:;: 8
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) SPACE ABOVE FOR RECORDER'S USE ONLY
City Engineer
When Recorded Mail to:
City Clerk
City of Encinitas
505 South Vulcan Avenue
Encinitas. CA 92024
PRIVATE STORM WATER
MAINTENANCE AGREEMENT
Assessor's Parcel No. 254-040-10
Project No.: 01-171 TPM
W.O.No.: 9058-G
A. THIS AGREEMENT for the periodic maintenance and repair of that certain private storm
water facilities, the legal description and/or plat of which is set forth in Exhibits attached
hereto and made a part hereof, is entered into by Jay M. Refold and Debra L. Refold, Co-
Trustees of the Refold Family Trust, dated February 28,2002
(hereinafter referred to as "Developer") for the benefit of future owners who will use the private
storm water facilities (hereinafter referred to as " owners", which shall include the Developer to
the extent the Developer retains any ownership interest in any land covered by this agreement.
WHEREAS, this Agreement is required as a condition of approval by the City of Encinitas
of a subdivision project as defined in Section 21065 of the Public Resources code and pursuant
to City of Encinitas Municipal Code Section 24; 16.060 and Section 24.29.040; and
WHEREAS, Developer is the owner of certain real property and developed as Exhibit "A"
that will use and enjoy the benefit of said storm water facilities(s). A complete legal description
of said real property is attached, labelled Exhibit "B". and incorporated by reference. Said real
property is hereinafter referred to as the "property"; and
WHEREAS, it is the desire of the Developer that said private storm water system be
maintained in a safe and usable condition by the owners; and
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WHEREAS, it is the desire of the Developer to establish a method for the periodic
maintenance and repair of said private storm water facilities and for the apportionment of the
expense of such maintenance and repair among existing and future owners; and
WHEREAS, there exists a benefit to the public the private storm water facilities be
adequately maintained on a regular and periodic basis; and
WHEREAS, it is the intention of the Developer that this Agreement constitute a covenant
running with the land, binding upon each successive owner of all or any portion of the property.
NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. The property is benefited by thi's Agreement, and present and successive owners
of all or any portion of the property are expressly bound hereby for the benefit of the land.
2. The cost and expense of maintaining the private storm water facilities shall be
paid by the owner of the heirs, assigns and successors in interest or each such owner.
3. In the event any of the herein described parcels of land are subdivided further, the
owners, heirs, assigns and successors in interest of each such newly created parcel shall be liable
under this Agreement for their then pro rata share of expenses and such pro rata shares of
expenses shall be computed to reflect such newly created parcels.
4. The repairs and maintenance to be performed under this Agreement shall be
limited to the following: reasonable and improvements and maintenance work to adequately
maintain said private storm water facilities to permit access to said facilities. Repairs and
maintenance under this Agreement shall include, but is not limited to, repairing access roadbeds,
repairing and maintaining drainage structures, removing debris, if any, and other work reasonably
necessary and proper to repair and preserve the private storm water facilities for their intended
purposes.
5. Ifthere is a covenant, agreement, or other obligation imposed as a condition of the
development, the obligation to repair and maintain the private storm water facilities as herein set
forth shall commence when improvements have been completed and approved by the City.
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6. Any extraordinary repair required to correct damage to said storm water facilities
that results from action taken or contracted for by the owners or their successors in interest shall
be paid for by the party taking action or party contracting for work which caused the necessity for
the extraordinary repair. The repair shall be such as to restore the storm water facilities to the
condition existing prior to said damage.
7. Any liability of the owners for personal injury to an agent hereunder, or to any
worker employed to make repairs or provide maintenance under this Agreement, or to third
persons, as well as any liability of the owners for damage to the property of agent, or any such
worker, or of any third persons, as a result of or arising out of repairs and maintenance under this
Agreement, shall be borne, by the owners as they bear the costs and expenses of such repairs and
maintenance. Owners shall be responsible for and maintain their own insurance, if any. By this
Agreement, the Developer does not intend to provide for the sharing of liability with respect to
personal injury or property damage other than that attributable to the repairs and maintenance
undertaken under this Agreement.
8. Owners shall jointly and severally defend and indemnify and hold harmless City,
City's engineer and its consultants and each of its officials, directors, officers, agents and
employees from and against all liability, claims, damages, losses, expenses, personal injury and
other costs, including costs of defense and attorney's fees, to the agent hereunder or to any owner,
any contractor, any subcontractor, any user of the storm water facilities, or to any other third
persons arising out of or in any way related to the use of, repair or maintenance of, or the failure
to repair or maintain the private storm water facilities.
9. Nothing in the Agreement, the specifications or other contract documents or City's
approval of the plans and specifications or inspection of the work is intended to include a review,
inspection acknowledgement of a responsibility for any such matter, and City, City's engineer
and its consultants, and each of its officials, directors, officers, employees and agents, shall have
no responsibility or liability therefore.
10. The foregoing covenants shall run with the land and shall be deemed to be
for the benefit of the land of the owners and each and every person who shall at anytime own all
or any portion of the property referred to herein.
11. It is understood and agreed that the covenants herein contained shall be binding on
the heirs, executors, administrators, successors, and assignees of each of the owners.
12. It is the purpose of the signatories hereto that this instrument be recorded to the
end and intent that the obligation hereby created shall be and constitute a covenant running with
the land and any subsequent purchaser of all or any portion thereof, by acceptance of delivery of
a deed andlor conveyance regardless of form, shall be deemed to have consented to and become
bound by these presents, including without limitation, the right of any person entitled to enforce
,
.
.
the terms of this Agreement to institute legal action as provided in Paragraph 8 hereof, such
remedy to be cumulative and in addition to other remedies provided in this Agreement and to all
other remedies at law or in equity.
\3. The terms of this Agreement may be amended in writing upon majority approval
of the owners and consent of the City.
14. This Agreement shall be governed by the laws of the State of California. In the
event that any of the provisions of this Agreement are held to be unenforceable or invalid by any
court of competent jurisdiction, the validity, and enforceability of the remaining provisions shall
not be affected thereby.
15. If the Property constitutes a "Common Interest Development" as defined in
California Civil Code Section \351(c) which will include membership in or ownership of an
"Association" as defined in California Civil Code Section \35 I (a), anything in this Agreement to
the contrary notwithstanding, the following provisions shall apply at and during such time as (i)
the Property is encumbered by a "Declaration" (as defined in California Civil Code Section
1351(h), and (ii) the Common Area of the property (including the private storm water facilities)
is managed and controlled by an Association:
(a) The Association, through its Board of Directors, shall repair and maintain the
private storm water facilities and shall be deemed the "agent" as referred to in Paragraph 7
above. The Association, which shall not be replaced except by amendment to the Declaration,
shall receive no compensation for performing such duties. The costs of such maintenance and
repair shall be assessed against each owner and his subdivision interest in the Property pursuant
to the Declaration. The assessments shall be deposited in the Association's corporate account.
(b) The provisions in the Declaration which provide for assessment liens in favor of
the Association and enforcement thereof shall supersede Paragraph 8 of the Agreement in its
entirety. No individual owners shall have the right to alter, maintain or repair any of the
Common Area (as defined in California Civil Code Section \351(b) in the Property except as
may be allowed by the Declaration.
(c) This Agreement shall not be interpreted in any manner, which reduces or limits
the Association's rights and duties pursuant to its Bylaws and Declaration.
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This
IN WITNESS WHEREOF, the parties have executed this Agreement
'1 day of F'C5RVp.,/<..~ ,2005.
Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
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CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
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State of California
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ROBER! M. NEill
~ Commission # 1296654 ::z
~ ,..,; Notary PUb, lie - California ~
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to be fhe perso~ whose name(9 i€>
subscribed to the within instrument and
acknowledged to me that ilt/s~ executed
the same in ~/1'lo~ authorized
capacit~, and that by hl$/lleczmD>
signatur~on the instrument the persor@)or
the entity upon behalf of which the persor€])
acted, executed the instrument.
WITNESS my hand and official seal.
~ M. f\..N.
Signlltureof Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: ~'"' ,/~k ':>~r"" W",\...t "'>f~ \.
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
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D Individual
D Corporate Officer - Title(s):
D Partner - D Limited D General
U Attorney-in-Fact
D Trustee
L] Guardian or Conservator
D Other:
Signer Is Representing:
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@ 1991:1 National Notary Association' 9350 De Solo Ave.. P,O, Bo~ 2402 . Chatsworth, CA 91313-2402' www,nationalnotary.org
Prod NO, 5907
ReordeL Call Toll-Free 1-800-876-6627
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ATTACHMENT "A" TO
COVENANT REGARDING REAL PROPERTY
PROJECT NO. TPM 01-171
The Northerly 1 00 feet of the Southerly 200 feet of all that portion of Lot 2, in the
Northeast Quarter of Section 5, in Township 13 South, Range 4 West, San Bernardino
Meridian, in the City of Encinitas, County of San Diego, State of California, according to
the United States Government Survey approved April 19, 1881, described as follows:
Beginning at a point on the Westerly line of Neptune Avenue as said avenue is shown oil
Map No. 2078 of South Coast Park NO.5 filed November 21 i 1927 in the Office of the
County Recorder of San Diego County, distant thereon North 19026'45"West 193.27 feet
from the intersection of the Westerly prolongation of the center line of Avocado Street
with the said Westerly line of Neptune Avenue as said streets are shown on said Map No.
2078; said point of beginning being further identified as the most Easterly corner of land
described in Deed to Hp.r"prt R. Hall et ux dated May 8; 1934, recorded Mayll, 1934in
Book 290, Page 315 of Official Records, thence South 70033'15" West 201.63 feet along
the Southerly line of said Halll,andto a point on the Easterly line of land described in Deed
to the County of San Diego, dated January 1 0, 1930 and ,recorded in Book 1731, Page
254 of Deeds, records of said County; thence Sbuth21 006'45" East 250.10 feet along
said Easterly line to the most Westerly corner of land described in Deed to Robert W.
Kenny dated May 3, 1933, recorded May 16,1933 in Book 218, Page 1 of Official
Records; thence North 70033'15" East 194.35 feet along the Northerly line of said Kenny
land to a point on the Westerly line of Neptune Avenue; thence North 19026'45"West
250.00 feet along said Westerly line to the Point of Beginning, as per Record Survey Map
No. 1116 filed in the Office of the County Recorder of San Diego County July 24,1944,
excepting therefrom that portion if any, now lying below the ordinary high tide line of the
Pacific Ocean.
Assessor's Parcel No: 254-040-10
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EXHIBIT "B"
PLAT FOR PRIVATE STORM WATER
TREATMENT MAINTENANCE AGREEMENT
R/W
SOUTH COAST pARI( No, 5
MAP No, 2018
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NEPTUNE A VENUE
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PRO.): 01-075 DAT'E:I2.2W4
SOWARDS & BROWN ENGINEERING
CONSULTING ENgINEERS
aU7 NEWCASTLE AveNUE SUITE H'"
CARD.f"1'ByTHe...."',c..._...2007
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